JURY: LEGAL ASPECTS

In 1791, the Sixth Amendment of the U.S. Constitution guaranteed every criminal defendant the right to trial "by an impartial jury of the State and district wherein the crime shall have been committed." This provision was essentially redundant. Article III, section 2 of the Constitution had already provided, "The trial of all Crimes, except in Cases of Impeachment, shall be by Jury." The right to jury trial in criminal cases was among the few guarantees of individual rights enumerated in the Constitution of 1789, and it was the only guarantee to appear in both the original document and the Bill of Rights.

Until 1968, the Supreme Court insisted that the Sixth Amendment afforded the right to jury trial only in the federal courts, but that year, in Duncan v. Louisiana, 391 U.S. 145 (1968), the Court held that the Fourteenth Amendment's due process clause "incorporated" this Sixth Amendment right and made it applicable to the states. The Court's opinion declared, "Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge."

Prior to Duncan, every state had guaranteed the right to jury trial in felony cases. Moreover, prior to the Constitution and even to the Declaration of Independence, the First Continental Congress's Declaration of Rights of 1774 had proclaimed the right to jury trial. The right to a jury trial in America was in fact as old as James I's charter to the company that settled Jamestown in 1607. Thomas Jefferson once wrote, "Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say it is better to leave them out of the Legislative" (Jefferson, vol. 15, p. 283). William Blackstone called the right to jury trial "the palladium of English liberty" (vol. 3, p. * 379).

Origins

In 1166, during the reign of Henry II in England, the Assize of Clarendon directed juries of twelve people in each community to reveal and accuse members of the community believed to have committed crimes. These juries, the progenitors of modern grand juries, did not decide criminal cases; their function was to serve, in the absence of professional police forces, as the king's eyes and ears. The trial of criminal accusations was by battle, by wager of law (formal oath taking by the accused and by others who vouched for him), and—most commonly—by ordeal. The ordeal took many forms—for example, carrying a heated iron a specified distance so that authorities later could inspect the wound to see whether it was infected or healed. An accused who passed the ordeal was acquitted.

In 1215, the Fourth Lateran Council under Pope Innocent III outlawed the ordeal, and in England, jury trial emerged as its replacement. Initially, judges had sufficient doubts about this procedure that they required the accused's consent before using it, but they ordered the accused to be pressed under stones until he either consented or died. Within about a century, it was established that the common law jury consisted of twelve people, no more and no less. (Sir Edward Coke later noted the mystic significance of the number twelve, which echoed the number of tribes of Israel and the number of Christ's disciples.) It was also quickly established that a jury could convict or acquit only by unanimous vote. Traveling justices sometimes carried juries from town to town in carts until they reached agreement.

Juries initially were self-informing, relying on their own knowledge and investigation rather than on evidence presented in court. The earliest jurors thus were witnesses as much as they were judges. Even in 1671, long after jurors had come to base their verdicts on courtroom evidence, Chief Justice John Vaughan's opinion in Bushell's Case, 124 Eng. Rep. 1006 (Common Pleas 1671), declared that jurors could rely on their personal knowledge as well.

This landmark case arose when William Penn (later the founder of Pennsylvania) and William Meade were charged with unlawful assembly and disturbing the peace. They had preached Quaker doctrine on the streets of London, generating a tumultuous response. When the jurors refused to convict, the court fined them for disregarding the evidence and the court's instructions. One juror, Edward Bushell, was imprisoned for refusing to pay the fine. He filed for a writ of habeas corpus, and in a ruling that effectively ended longstanding controversy about the issue, Chief Justice Vaughn declared that judges could neither punish nor threaten to punish jurors for their verdicts. Bushell's Case established the principle of noncoercion of jurors.

Although, after Bushell's Case, judges could not force jurors to convict, a common law judge who disapproved a jury's verdict of guilty had an effective means of preventing the defendant's punishment. The judge could recommend a pardon with full assurance that the Crown would grant it as a matter of course. In addition, judges guided juries by commenting freely on the evidence. In America, this practice ended in the nineteenth and twentieth centuries (Lerner).

The Framers' enthusiastic support for the jury stemmed mainly from the role that American juries had played in resisting English authority before the Revolution. These juries greatly hindered the enforcement of English revenue laws and all but nullified the law of seditious libel. The jury was revered as the most democratic institution in the colonies.

The most noted of the pre-Revolutionary cases was that of John Peter Zenger, a New York printer tried on charges of seditious libel in 1735. Zenger's paper, the first journal of political criticism in America, directed most of its barbs toward the royal governor of New York. One of the governor's supporters, Chief Justice James De Lancey, appointed another supporter to represent Zenger at his trial. After the proceedings had begun Andrew Hamilton of Philadelphia, widely regarded as the foremost lawyer in the colonies, "rose dramatically from his chair in the City Hall courtroom and announced . . . that he would participate in Zenger's defense" (Katz, p. 22). Hamilton argued that the truth of Zenger's publication was a defense, and although his argument was manifestly unsound under the law of the era, he maintained that the question was for the jury to decide. The jury's acquittal brought "three huzzas" from spectators in the courtroom.

The English responded to their difficulties with American juries by extending the jurisdiction of admiralty courts (nonjury courts) and by declaring that colonists charged with treason would be tried in England. The Declaration of Independence listed as one of its grievances against George III his "depriving us . . . of the benefits of trial by jury."

The scope of the right

The Sixth Amendment right to jury trial does not extend to petty offenses. Baldwin v. New York, 399 U.S. 66 (1970), held, however, that "no offense can be deemed 'petty' . . . where imprisonment for more than six months is authorized." An offense punishable by less than six months' imprisonment is presumed to be petty, but sanctions other than imprisonment may be sufficiently severe to remove the crime from the petty offense category (Blanton v. City of North Las Vegas, 489 U.S. 538 (1989)). Many states extend the right to jury trial farther than the Constitution requires. In California, even a defendant charged with a traffic offense may demand a jury trial.

McKeiver v. Pennsylvania, 403 U.S. 528 (1971), held that the right to jury trial does not extend to juvenile delinquency proceedings, which are nominally "civil" rather than "criminal" in character. The right also does not extend to sexual psychopath proceedings and to suits by the government to collect civil penalties.

A defendant has no right to jury trial in most sentencing proceedings (see Spaziano v. Florida, 468 U.S. 447 (1984)). Nevertheless, the Supreme Court held in Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), that when the determination of a fact other than prior criminal record would extend a defendant's maximum term of imprisonment, the defendant is entitled to have that fact determined by a jury. Whether Apprendi will remain limited to cases in which a factual determination would extend the defendant's maximum sentence (rather than the mandatory minimum sentence, the sentence dictated by sentencing guidelines, or the actual sentence) is certain to be the subject of further litigation.

Jury size

Although the Supreme Court previously said that the Sixth Amendment required juries of twelve, the Court in 1970 declared this traditional number a "historical accident, wholly without significance except to mystics." It concluded in Williams v. Florida, 399 U.S. 78 (1970), that the Constitution allowed juries of six. In support of its claim that there was "no discernable difference between the results reached by the two different-sized juries," the Court cited studies that seemed to most observers to establish just the opposite. The Court declared that a jury of six was "large enough to promote group deliberation, free from outside attempts at intimidation, and to provide a fair possibility of obtaining a representative cross section of the community."

One critic of Williams titled his paper "And Then There Were None" (Zeisel). Nevertheless, in Ballew v. Georgia, 435 U.S. 223 (1978), a unanimous Court held five-person juries impermissible. A great many states now use six-person juries, especially in misdemeanor prosecutions. Only seven states expressly require twelve-person juries in all cases, but other states permit departures from this historic number only with the defendant's consent. (Miller).

Unanimity

In Apodaca v. Oregon, 406 U.S. 404 (1972), four Supreme Court justices concluded that conviction by a vote of 10-to-2 did not violate the Sixth Amendment. Four justices dissented, arguing that the amendment requires juror unanimity. The remaining justice, Justice Powell, agreed with the dissenters' construction of the Sixth Amendment but rejected the view that "all of the elements of jury trial within the meaning of the Sixth Amendment are necessarily embodied in or incorporated into the Due Process Clause of the Fourteenth." As a result, nonunanimous verdicts are permissible in state but not federal courts. In a companion case, the Court upheld a state-court conviction by a 9-to-3 vote ( Johnson v. Louisiana, 406 U.S. 356 (1972)). Later, the Court held that conviction by a vote of 5-to-1 was unconstitutional; convictions by six-person juries must be unanimous (Burch v. Louisiana, 441 U.S. 130 (1979)).

Defendants have argued that nonunanimous verdicts violate not only the right to jury trial but also the right not to be convicted except upon proof of guilt beyond a reasonable doubt. The Court rejected this argument in Johnson, holding that the reasonable doubt requirement demands only that each juror be instructed to acquit unless this requirement has been satisfied. Nevertheless, both the historic requirement of twelve jurors and the historic requirement of unanimity have promoted confidence in the accuracy of criminal convictions. The unanimity requirement also has encouraged jurors to listen to and attempt to persuade one another; it prevents the majority from outvoting dissenters without considering their views. In Scotland, where juries of fifteen may convict or acquit by a simple majority vote, divided juries deliberate only if they choose. In England, 10-to-2 verdicts are permitted after the jury has deliberated two hours (Pizzi).

At the time of the Supreme Court's decisions in Apodaca and Johnson, Oregon and Louisiana were the only states permitting nonunanimous verdicts in felony cases. These states remained alone twenty-nine years later. Nevertheless, prosecutors in several other states were actively supporting legislation to allow nonunanimous verdicts. One of their concerns was that a minority of jurors might "nullify" the law by blocking conviction when proof of guilt was clear. The prosecutors may have been especially concerned that minority-race jurors would block the conviction of minority-race defendants. A later section of this entry will discuss the issues raised by jury nullification.

Vicinage

The Anti-Federalists who opposed ratification of the Constitution protested that the right to jury trial guaranteed by Article III was inadequate. Their objections led two years later to the Sixth Amendment's requirement that juries be drawn from "the State and district wherein the crime shall have been committed." For the Framers, jury impartiality did not require jurors to arrive at the courtroom wholly unaware of the circumstances of the case before them. Knowledge of local conditions and of the reputations of the defendant and of witnesses was thought to enhance the jurors' performance. Juries could serve their communitarian function only if they were local (see Abramson, pp. 22–30). State statutes now typically provide a right to trial before a jury drawn from the county in which the crime is alleged to have occurred.

Selecting jurors

Statutory eligibility: some history. At the time of the ratification of the Sixth Amendment, every state limited jury service to men, and every state except Vermont limited jury service to property owners or taxpayers. The early nineteenth century, however, saw the rapid triumph of "universal sufferage," a term used without any sense of irony to describe the enfranchisement of adult white men. Some states declared that everyone qualified to vote also could serve on juries, and in these states, affording the vote to persons without property made them eligible for jury service. In other states, however, eligibility for jury service sometimes lagged behind the right to vote. A few tax-paying and property-holding requirements persisted into the twentieth century. In 1946, however, the Supreme Court invoked its supervisory power over the administration of federal justice and struck down an exclusion of daily wage earners from jury service. The Court refused to "breathe life into any latent tendencies to establish the jury as the instrument of the economically and socially privileged" (Thiel v. Southern Pacific Co., 328 U.S. 217, 223–224 (1946)). By 1946, class-based qualifications like those accepted by the Framers of the Constitution appeared inconsistent with the concept of jury trial.

Especially in the first half of the nineteenth century, formal qualifications did not always determine who served on juries in fact. The members of a group eligible for jury service might never serve, for public officials exercised "very extensive and very arbitrary" powers in summoning jurors (Toqueville, vol. 1, pp. 359–360). Moreover, statutory disqualification did not necessarily mean real disqualification. When qualified jurors failed to appear, statutes permitted court officials to impanel unqualified "bystanders," and in some jurisdictions, the use of bystanders was common.

Although unpropertied white men rapidly made their way onto American juries, the path to the jury box was vastly more arduous for blacks and women. The first blacks ever to serve on an American jury may have been two who sat in Worcester, Massachusetts, in 1860. Even when federal legislation declared blacks eligible to testify in federal courts (1864) and in state courts (1866), proponents of these measures insisted that they would not lead to the inclusion of blacks on juries.

The Fourteenth Amendment's equal protection clause (1868) was not thought initially to give blacks the same political rights as whites—neither the right to sit on juries nor the right to vote. A separate amendment, the Fifteenth (1870), therefore was necessary to extend the franchise to blacks, and this amendment did not guarantee blacks the right to hold office or serve on juries. In 1875, however, a Federal Civil Rights Act declared, "[N]o citizen . . . shall be disqualified for service as a grand or petit juror in any court of the United States, or of any State on account of race, color, or previous condition of servitude." The supporters of this measure contended, not that Congress had the power to extend "political" rights to blacks, but that nondiscriminatory jury selection would protect the right of black litigants to equal protection of the laws. On the same theory, the Supreme Court held in 1880 that a West Virginia statute limiting jury service to whites violated the equal protection rights of a black defendant (Strauder v. West Virginia, 100 U.S. 303 (1880)).

During Reconstruction, blacks served on juries in most, but not all, Southern states and in Southern federal courts. In some jurisdictions, color-conscious jury selection ensured that juries mirrored the racial composition of the counties in which they sat. In 1879, however, with Reconstruction at an end, Congress authorized discretionary jury selection procedures in the federal courts that were well designed to deny in practice what the act reaffirmed in theory—that no citizen could be disqualified from jury service on account of race.

Although Strauder and the Civil Rights Act of 1875 had effectively (if indirectly) recognized the right of black men to serve on juries, this right remained unenforced for most of a century. Booker T. Washington observed at the end of the nineteenth century, "In the whole of Georgia & Alabama, and other Southern states not a Negro juror is allowed to sit in the jury box in state courts" (quoted in Schmidt, p. 1406). Of the period from the end of Reconstruction to the New Deal, Benno Schmidt declared, "[T]he systematic exclusion of black men from Southern juries was about as plain as any legal discrimination could be short of proclamation in state statutes or confession by state officials" (Schmidt, p. 1406).

Long after Strauder held the statutory exclusion of black men from jury service unconstitutional, the statutory exclusion of women persisted. The first jury service by women in America (and, indeed, in any common law jurisdiction) occurred in the Wyoming Territory in 1870. A new chief justice brought this experiment in gender equality to an end two years later, and women did not serve on Wyoming juries again until the 1940s.

Just as the Fifteenth Amendment afforded black men the right to vote without guaranteeing them the right to serve on juries, the Nineteenth Amendment enfranchised women and did no more. In some states, jury-qualification statutes described jurors in part as "electors" or "voters." When women gained the right to vote in these states, they usually gained the right to serve on juries as well. In other states, however, new legislation was needed, and in 1930, the Executive Secretary of the League of Women Voters complained, "Getting the word 'male' out of jury statutes is requiring something like a second suffrage campaign—laborious, costly, and exasperating" (Kerber, p. 143).

Legislation authorizing women to serve on juries did not always guarantee them the right to serve on the same terms as men. A 1949 Massachusetts statute exempted a woman from serving in any case in which the presiding judge had reason to believe she would "likely . . . be embarrassed by hearing the testimony or discussing [it] in the jury room." Many states provided an exemption from jury service that women could claim on the basis of their sex alone. Indeed, in some of these states, women were not required to claim their exemption; they served on juries only if they registered at the courthouse or took other steps to volunteer.

As late as 1961, when John F. Kennedy was President and Earl Warren Chief Justice, the Supreme Court unanimously upheld the constitutionality of a jury system in which men were drafted while women served only if they volunteered. "[W]oman is still regarded as the center of home and family life," the Court declared. "We cannot say that it is constitutionally impermissible for a State. . .to conclude that a woman should be relieved from the civic duty of jury service unless she herself determines that such service is consistent with her own special responsibilities" (Hoyt v. Florida, 368 U.S. 57, 62 (1961)). The Supreme Court effectively overruled this decision in 1975 (Taylor v. Louisiana, 419 U.S. 522 (1975)).

The last major barrier to equal participation in jury service for blacks, other minorities, and women was (and, despite formal rulings to the contrary, still may be) the peremptory challenge. This device is discussed in a later section of this entry.

Exemption

Like women, the members of various occupational groups often have been exempted by statute from jury service—lawyers, doctors, nurses, pharmacists, school teachers, clergy, mail carriers, ship officers, airline pilots, firefighters, police officers, sole proprietors of businesses, salespeople on commission, embalmers, legislators, and others. Professional exemptions are still recognized in a great many states, but the trend of recent legislation has been to abolish them. In recent years, even judges have been known to serve on juries in courts other than their own.

Assembling the venire

Until the 1960s, most state and federal courts employed a "key man" system in which jury commissioners or court clerks asked prominent citizens, politicians, or other "key men" to nominate prospective jurors. Officials then summoned jurors from the lists these "key men" had provided. Some states in New England and the South still retain this system, and although jury selection methods must satisfy the equal protection and "fair cross-section" requirements discussed below, the Supreme Court has held that the Constitution does not require random jury selection. The Court has upheld statutory requirements that court officials eliminate anyone found not "upright" and "intelligent" (Turner v. Fouche, 396 U.S. 346 (1970)), and that they summon only citizens who are "generally reputed to be honest and intelligent. . .and esteemed in the community for their integrity, good character and sound judgment" (Carter v. Jury Commission of Greene County, 396 U.S. 320 (1970)). The Federal Jury Selection and Service Act of 1968 ended the "key man" system in the federal courts, and the Uniform Jury Selection and Service Act proposed by the National Conference of Commissioners on Uniform State Laws in 1970 was largely modeled after the federal Act.

Most state courts now follow procedures similar to those mandated by the federal statute. In these jurisdictions, jury selection begins with a "source list." Under the federal act, the basic source list must be the list of registered or actual voters, but this list must be supplemented by others when it will not assure random jury selection from a fair cross-section of the community. Partly because racial minorities, young people, and the poor are less likely than others to register to vote, many jurisdictions use lists of driver's licenses and state identification cards to supplement (and sometimes replace) voter lists. Some jurisdictions also use city directories, tax rolls, and telephone books. No source list is likely to be entirely current, however, and because the members of some groups change addresses more frequently than others, even the best efforts to ensure representative jury panels through random selection from a source list may fall short.

Under the federal statute, at least one-half of 1 percent of the names on the source list are placed in a "master" jury wheel. A judge or court clerk draws names from this wheel as jurors are needed, and juror-qualification forms are sent to the people whose names are drawn. A judge then eliminates prospective jurors whose responses indicate that they are unqualified because (1) they are not citizens, (2) they are not eighteen, (3) they have not resided in the judicial district for at least one year, (4) they do not speak English or cannot read and write English well enough to complete the qualification form, (5) they are too mentally or physically infirm to serve, or (6) they are currently charged with a crime punishable by imprisonment for more than one year or have previously been convicted of such a crime and their civil rights have not been restored. Prospective jurors may claim occupational exemptions from jury service in their questionnaires and may claim that jury service would be a hardship. (A prospective juror also may claim that serving on a jury in a particular case would be burdensome at a later stage of the process.) The names of the qualified jurors who are not exempted or excused are placed in a second jury wheel, the "qualified" jury wheel. People whose names are drawn from this wheel receive jury summonses. Some jurisdictions make systematic efforts to enforce these summonses, but in many, the sanctions authorized for noncompliance are more theoretical than real.

People who respond to jury summonses are typically assigned to a jury pool and then directed from the pool to particular courtrooms for the trial of cases. Complaints about juror waiting time have led many jurisdictions to implement "one day, one trial" systems. In these systems, a juror is excused after serving on a single jury or after waiting for one day without being chosen. The panel of prospective jurors from which a jury is selected is called the venire.

Challenges to the venire

A defendant who claims that a jury panel was improperly summoned may file a "challenge to the array" or a "motion to quash the venire." This challenge may be based on statutory grounds, or it may allege improper exclusion under either the fourteenth amendment's equal protection clause or the sixth amendment's right to a jury drawn from a fair cross-section of the community.

Equal protection. Long before Duncan v. Louisiana extended the Sixth Amendment right to jury trial to the states, the Supreme Court and other courts condemned racially discriminatory jury selection in state courts as a violation of the equal protection clause. Shortly after Strauder v. West Virginia invalidated a statute limiting jury service to whites, the Supreme Court recognized that the discriminatory administration of a facially neutral statute also could violate the Constitution (Neal v. Delaware, 103 U.S. 370 (1881)).

The Supreme Court has held that the equal protection clause condemns only purposeful discrimination; a "discriminatory effect" or "discriminatory impact" is insufficient. Nevertheless, proof of a sufficiently discriminatory effect can provide a basis for inferring a discriminatory purpose. In Norris v. Alabama, 294 U.S. 587 (1935), the Court reversed the second conviction of one of the Scottsboro boys (a group of black youths sentenced to death by all-white juries on doubtful evidence that they had raped two young white women). The Court held that proof that blacks constituted a substantial portion of the community and had never or almost never served on juries established a prima facie case of discrimination. Later rulings made clear that a jury commissioner's statement that he did not know any blacks or a denial that he intended to discriminate was not enough to rebut a prima facie case (Hill v. Texas, 316 U.S. 400 (1942); Eubanks v. Louisiana, 356 U.S. 584 (1958)).

The Supreme Court's statistical standards for inferring discrimination became increasingly stringent (see Turner v. Fouche ; Alexander v. Louisiana, 405 U.S. 625 (1972)). In Castaneda v. Partida, 430 U.S. 482 (1977), proof that a county's population was 79 percent Mexican-American while only 39 percent of the people summoned for jury service were Mexican-American was sufficient to establish a prima facie case.

Some courts have used color-conscious jury selection methods to ensure the representation of minorities. They hope to increase the likelihood that the jury will represent the community, promote group deliberation, and enhance the public acceptance of jury verdicts. Some of the objections offered to affirmative action in other contexts seem inapplicable to race-conscious efforts to ensure the inclusion of nonwhites on juries (see Alschuler, 1995). A federal Court of Appeals, however, has held one color-conscious jury selection plan unconstitutional (United States v. Ovalle, 136 F.3d 1092 (6th Cir. 1998)).

As noted above, Strauder held that the exclusion of blacks from a jury violated the equal protection rights of black defendants, not the rights of excluded jurors. In Powers v. Ohio, 499 U.S. 400 (1991), however, the Court recognized that racial discrimination in jury selection does violate the equal protection rights of the excluded jurors. The Court held that because these jurors could not effectively challenge discrimination against them, a defendant in a criminal case could assert their rights. A white defendant therefore had "standing" to challenge the exclusion of black jurors.

The fair cross-section requirement. Duncan 's application of the Sixth Amendment to the states supplied another basis for challenging discriminatory jury selection in state courts. In a federal case in 1942, the Supreme Court spoke of the jury as a "cross-section of the community" and declared, "[T]he proper functioning of the jury system, and, indeed, or our democracy itself, requires that the jury be a 'body truly representative of the community"' (Glasser v. United States, 315 U.S. 60 (1942)).

In 1975, following Duncan 's incorporation of the right to jury trial in the Fourteenth Amendment, the Court invoked Glasser and held that a "fair cross-section requirement" implicit in the Sixth Amendment forbade discrimination that the Court had refused to condemn under the equal protection clause. In Taylor v. Louisiana, 419 U.S. 522 (1975), the Court did not overrule its earlier decision that the exemption of women from jury service was compatible with the equal protection clause, but it held that this exemption did violate the Sixth Amendment.

Despite its label, the "fair cross-section requirement" does not require that juries be a fair cross-section of the community. The Court reiterated in Taylor that defendants are not entitled to a jury of any particular composition. Indeed, the Supreme Court has said that the fair cross-section requirement does not extend to trial juries at all but only to the panels from which the juries are drawn (Lockhart v. McCree, 476 U.S. 162 (1986); Holland v. Illinois, 493 U.S. 474 (1990)). Moreover, the fair cross-section requirement forbids only the "systematic" exclusion of "distinctive groups in the community" (Durden v. Missouri, 439 U.S. 357 (1979)). If the luck of the draw were to yield five consecutive jury panels composed entirely of wealthy Republican women golfers, their selection apparently would not violate the Constitution.

"Systematic" exclusion need not be "purposeful" but apparently must be regular and foreseeable. The exclusion of a "distinctive group" need not be total, but the underrepresented group must be an "identifiable segment playing [a] major role in the community." When the Supreme Court held that women were a "distinctive group," it noted that with their absence from the jury "a flavor, a distinct quality is lost" (Taylor v. Louisiana ). Lower federal and state courts have held that young adults and occupational groups are not sufficiently distinctive (La-Fave, Israel, and King, p. 1034). Similarly, people unwilling to impose the death penalty in any case do not qualify as a distinctive group (Lockhart v. McCree ).

Selecting the jury from the venire

The voir dire examination. The examination of prospective jurors by lawyers and judges at the beginning of the jury selection process is called the voir dire.

Judges sometimes require prospective jurors to complete questionnaires prior to their examination in the courtroom. In the O. J. Simpson case, prospective jurors were directed to answer 294 multiple-part questions, including: "Which tabloids do you read on a regular or occasional basis?" "How many hours a week do you watch sporting activities?" "Do you own any special knives?" "Name the three public figures you admire most." And, "Does the fact that O. J. Simpson excelled at football make it unlikely in your mind that he could commit murder?" Such in-depth questioning, however, is rare in ordinary criminal cases.

In most states, a defendant is entitled to a list of prospective jurors prior to trial, and although lawyers may not attempt to influence jurors, both defense attorneys and prosecutors may investigate them. Prosecutors sometimes use law enforcement officers for this purpose, and they typically keep records of how jurors have voted in the past. In addition, prosecutors are likely to have easy access to the arrest and conviction records of prospective jurors. Courts generally do not require either prosecutors or defense attorneys to disclose what they have learned about prospective jurors to their opponents, but some courts have required limited disclosures.

In a number of high-profile cases, defendants with means have hired jury consultants to survey community attitudes and construct profiles of jurors likely to prove favorable or unfavorable to the defense. Jury consultants use focus groups for the same purpose, and some defendants have hired psychologists to observe prospective jurors in the courtroom and predict their behavior on the basis of facial expressions and body language. Defendants also have been known to use experts to analyze the handwriting of prospective jurors.

In a substantial majority of federal courts and in many state courts, the voir dire is conducted primarily by the trial judge, who generally permits counsel to ask additional questions or else submit questions in writing for the judge to ask the panel. In many state courts, however, the voir dire is conducted primarily or exclusively by the prosecutor and defense attorney. In examining prospective jurors, lawyers probe their private attitudes and practices—asking, for example, about religious beliefs, drinking habits, reading habits, memberships, hobbies, traffic accidents, and prior experience with lawyers, and then asking about the jurors' relatives' jobs, experiences as crime victims, and arrest records as well. A lawyer usually hopes not only to gain information but also to establish rapport and to create a favorable predisposition to the lawyer's side of the case.

In Turner v. Murray, 476 U.S. 28 (1986), the Supreme Court held that "a capital defendant accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias." The trial court's failure to conduct this questioning, however, entitled the defendant only to relief from his capital sentence, not to the reversal of his conviction. The Court also held that a judge's refusal to question prospective jurors about possible racial prejudice violated the due process clause when the defendant was a black civil rights worker charged with a drug offense (Ham v. South Carolina, 409 U.S. 524 (1973)). The omission of questions concerning racial prejudice was permissible, however, when the defendant was a black charged with robbing, assaulting, and attempting to murder a white security guard (Ristaino v. Ross, 424 U.S. 589 (1976)).

Critics have argued that the extended voir dire of prospective jurors is wasteful, invasive of privacy, and incompatible with the democratic ideals of the jury system. Most trial lawyers, however, resist restriction of the practice and support attorney—rather than judge—conducted voir dire. These lawyers maintain that the more latitude they are allowed in examining prospective jurors, the less they must rely on hunches and group stereotypes in exercising their peremptory challenges.

Challenges for cause. Statutes typically specify a number of grounds for disqualifying prospective jurors such as prior service on a grand or trial jury in the same case or being a member of the defendant's family. The most common basis for a challenge for cause, however, is bias or an inability to try the case impartially. Judges often appear reluctant to sustain challenges for cause, and despite clear indications of bias, they may treat a pledge from the challenged juror to judge the case impartially on the basis of the evidence presented as sufficient. The judges tend to rely in doubtful cases on the exercise of peremptory challenges by lawyers to remove possibly biased jurors.

Even when jurors claim that they can render an impartial verdict, pretrial publicity can be so extensive and so prejudicial that bias must be presumed (Irvin v. Dowd, 366 U.S. 717 (1961)). Exposure to descriptions of a defendant's alleged crime and prior criminal record, however, does not automatically warrant a presumption of bias (Murphy v. Florida, 421 U.S. 794 (1975)).

In a capital case, a court may not excuse a juror for cause simply because this juror "has conscientious scruples against capital punishment" (Witherspoon v. Illinois, 391 U.S. 510 (1968)). A court may, however, excuse a juror whose views of capital punishment would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath" (Wainwright v. Witt, 469 U.S. 412 (1985)). Just as a prosecutor may "death qualify" a jury by excluding people who would oppose the death penalty regardless of the circumstances of the case, a defendant in a capital case must be allowed to ask prospective jurors whether they would automatically support the death penalty. Jurors who answer this question yes must be disqualified (Morgan v. Illinois, 504 U.S. 719 (1992)).

Peremptory challenges. Statutes and court rules afford prosecutors and defendants a specified number of peremptory challenges that they may exercise without giving reasons. In a federal felony trial, for example, the defendant may exercise ten peremptory challenges and the prosecutor six. Most states afford the defendant and the prosecutor an equal number of challenges.

Typically, the process of exercising peremptory challenges begins by seating a group of twelve prospective jurors in the jury box. Members of this panel are challenged initially by the prosecutor, and the jurors whom the prosecutor dismisses either peremptorily or for cause are replaced. The defense attorney then makes challenges on behalf of the defendant. Each lawyer tenders a panel of twelve to the other until both sides have exhausted their peremptory challenges or declined the opportunity to make further challenges.

A less common procedure is the "struck jury system," which begins with a panel containing a sufficient number of prospective jurors to permit both sides to exhaust their peremptory challenges and still have enough jurors for trial. The parties first make their challenges for cause, and the jurors removed for cause are replaced. Then the parties alternate in making peremptory strikes.

The right of a criminal defendant to challenge a number of jurors peremptorily dates from the earliest days of the jury, but when English and American juries were composed entirely of white male property owners, this right was virtually never exercised. Democratization of the jury, which enabled lawyers to base their challenges on group judgments and stereotypes, revived the peremptory challenge. Once the Supreme Court had condemned discriminatory jury selection by legislatures and court officials, this challenge was the last bastion of undisguised racial discrimination in the American criminal justice system.

In Swain v. Alabama, 380 U.S. 202 (1965), an all-white jury in Talladega County, Alabama, convicted a nineteen-year-old black man of raping a seventeen-year-old white woman and sentenced him to death. Since at least 1950, no black had served on a civil or criminal jury in Talladega County, and the prosecutor in Swain used six peremptory challenges to remove from the jury panel the only six blacks eligible to serve.

The Supreme Court affirmed the defendant's conviction and sentence. It distinguished between striking blacks in order to improve the prosecutor's likelihood of success at trial and striking them "for reasons wholly unrelated to the outcome of the particular case . . . [simply] to deny the Negro the same right and opportunity to participate in the administration of justice enjoyed by the white population." The Court recognized that, in the absence of tactical, trial-related objectives, the use of peremptory challenges to exclude blacks would be unconstitutional. The Court held, however, that the prosecutor's exclusion of all black jurors in a single case could not establish the proscribed motivation. Moreover, the Court concluded that the evidence before it failed to establish that the prosecutor was responsible for the exclusion of blacks in cases other than Swain.

In 1986, the Supreme Court overruled Swain and brought the unrestricted, truly peremptory challenge to an end. It held in Batson v. Kentucky, 476 U.S. 79 (1986), that "the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race." Later cases held that the equal protection clause forbids discrimination by defense attorneys as well as prosecutors (Georgia v. McCollum, 505 U.S. 42 (1992)), that a white defendant may challenge a prosecutor's exclusion of blacks (Powers v. Ohio, 499 U.S. 400 (1991)), and that lawyers may not use peremptory challenges to discriminate on the basis of gender ( J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994)).

In the decision forbidding gender discrimination in the exercise of peremptory challenges, the Supreme Court indicated that the Fourteenth Amendment does not limit peremptory challenges unless they are based on classifications that receive "heightened equal protection scrutiny." Prosecutors and defense attorneys, unlike others governed by the equal protection clause, need not have a "rational basis" for treating people differently. They apparently may challenge prospective jurors simply because they are overweight, ugly, physically disabled, nervous, tattooed, or former residents of New Jersey.

Some lawyers employ selection principles that savor of whimsy, superstition, and folklore. Johnnie Cochran notes that he "excuse[s] any man who shows up wearing either white socks or a string tie" (Cochran, p. 261). Unlike classification on the basis of sock color, classification on the basis of religious belief does receive heightened scrutiny under the equal protection clause. Nevertheless, whether lawyers may challenge prospective jurors on the basis of their religion remains unsettled.

Under Batson, a defendant who objects to a prosecutor's use of a peremptory challenge must establish a "prima facie case of discrimination" before the prosecutor must offer an explanation for this strike. When the prosecutor has not given any verbal indication of an improper purpose, the requirement of prima facie proof may effectively allow the prosecutor to exclude at least one black juror without challenge. When a defendant does establish circumstances warranting "an inference of purposeful discrimination," the prosecutor must provide a "neutral explanation for challenging black jurors." The Court emphasized in Purkett v. Elem, 514 U.S. 765 (1995), however, that the prosecutor's explanation need not be "minimally persuasive." The trial judge may find that an implausible explanation was a "pretext for purposeful discrimination," but if the judge regards the prosecutor as sincere, the judge's determination of credibility will be conclusive. Purkett allowed a trial judge to accept the explanation "mustaches . . . and beards look suspicious to me," and an earlier decision permitted a prosecutor to exclude Latino jurors because they were bilingual and therefore "might have difficulty in accepting the translator's rendition of Spanish-language testimony" (Hernandez v. New York, 500 U.S. 352 (1991)). A juror may be excluded either because he has failed to maintain eye contact with a prosecutor or because he has stared at the prosecutor too long (Alschuler, 1989).

Although Batson requires the use of cumbersome procedures, its prohibition of racial discrimination is easily evaded. Partly for this reason, partly because much invidious discrimination not based on race or gender remains lawful, and partly because lawyers' challenges generally serve partisan rather than public ends, many commentators have echoed Justice Marshall's call in Batson for abolition of the peremptory challenge. Defenders reply that the peremptory challenge provides a way of excluding some jurors who should not serve without calling them biased, saves judges from deciding difficult questions of what experiences, associations, and perspectives should disqualify jurors, and "allows the covert expression of what we dare not say but know is true more often than not" (Babcock, pp. 553–554).

The review of jury verdicts

The Constitution's prohibition of double jeopardy precludes the review or revision of a jury's decision to acquit (United States v. Scott, 437 U.S. 82 (1978)), and review of a jury's decision to convict is highly deferential. In America, unlike most European nations, appellate review focuses more on trial and pretrial procedures than on trial outcomes.

In the federal courts and most states, juries are permitted to return inconsistent verdicts. When they do, courts assume that the jury verdict favorable to the defendant reflected a decision to be merciful; they disregard the possibility that the verdict unfavorable to the defendant was the product of error and misunderstanding (see Muller).

A common law rule forbids jurors from "impeaching" their verdicts by testifying to their own misconduct. In Tanner v. United States, 483 U.S. 107 (1987), the Supreme Court applied a successor to this rule and prevented two members of a jury from testifying that a number of jurors had abused alcohol, marihuana, and cocaine repeatedly during a trial. Although the rule was subject to an exception for testimony concerning "extraneous" or "outside" influences on the jury, the Court concluded that alcohol and drugs did not qualify. It declared, "There is little doubt that post-verdict investigation into juror misconduct would in some instances lead to the invalidation of verdicts reached after irresponsible or improper juror behavior. It is not at all clear, however, that the jury system could survive such efforts to perfect it."

Jury nullification

In England, although jury nullification was recognized and even welcomed in some cases, juries never acquired any official authority to disregard the instructions of judges and resolve questions of law for themselves. In America following the Revolution, however, the authority of juries to resolve issue of law was frequently confirmed by constitutions, statutes, and judicial decisions.

How American juries gained their authority to resolve questions of law is obscure. When, however, Andrew Hamilton declared in the Zenger trial in 1735 that juries "have the right . . . to determine both the law and the fact," he insisted that this authority was "beyond all dispute." Hamilton's position probably reflected the practice in some colonies but not all. In the absence of law books and law-trained judges, colonial jurors may have seemed as well suited to resolve legal issues as anyone else. In 1771, John Adams called it "an Absurdity to suppose that the Law would oblige [jurors] to find a Verdict according to the Direction of the Court, against their own Opinion, Judgment, and Conscience" (Adams, vol. 1, p. 230).

Whether juries should be the judges of law as well as fact was a contentious issue throughout the first half of the nineteenth century, but over the course of the second half of the century, legal issues became, almost everywhere, the exclusive province of the court. The Supreme Court endorsed this position in 1895 in Sparf and Hansenv. United States, 156 U.S. 51 (1895). The Court acknowledged that federal courts in earlier decades often had told jurors that they were to judge both the law and the facts. It nevertheless held that jurors must be bound by judicial instructions concerning the law.

The constitutions of three states—Georgia, Indiana, and Maryland—still declare that jurors shall judge questions of law as well as fact. In all three states, however, judicial decisions have effectively nullified these constitutional provisions. The clear rule in all other American jurisdictions is that juries must "take their law" as the trial judge declares it.

Jurors have the practical power to disregard this rule and to acquit defendants despite unmistakable proof of their guilt. Under the "principle of noncoercion of jurors" established by Bushell's Case in 1671, they may not be punished for doing so, and the double jeopardy clause prevents judges from setting aside their acquittals, however lawless they may seem (United States v. Scott, 437 U.S. 82 (1978)).

In the late 1960s and 1970s, defendants charged with unlawful resistance to the Vietnam War frequently contended that because jurors have a right to acquit whenever conviction would be unjust, judges should inform jurors of this right and allow defense attorneys to argue in favor of its exercise. Appellate courts uniformly rejected this argument. They insisted that jurors have the power to nullify the law but not the right.

The leading case is United States v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972). The court did not deny in Dougherty that jury nullification was sometimes appropriate. Indeed, it wrote, "The pages of history shine on instances of the jury's exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge." The court nevertheless concluded, "[W]hat is tolerable or even desirable as an informal, self-initiated exception, harbors grave dangers to the system if it is opened to expansion and intensification through incorporation in the judge's instruction." In the court's view, jurors should view nullification, not as a right, but as a form of civil disobedience.

Nearly everyone applauds the Zenger jury's nullification of the law of seditious libel and the nullification of fugitive slave laws by Northern juries in the period before the Civil War (although fugitive slave cases came before juries very infrequently). Some may also applaud the nullification of laws forbidding draft resistance during the Vietnam era and laws imposing harsh drug sentences today. Hardly anyone, however, applauds the nullification by Southern juries of laws forbidding the murder of blacks and white civil rights workers from the end of Reconstruction through the 1960s. The most frequent form of jury nullification probably has been, and still is, the nullification of laws against violence when juries have concluded that the victims of this violence "deserved it." Moreover, over the course of American history, many juries have seen skin color as an indicator of which victims "deserved it." For many, the 1991 acquittal of the police officers who were videotaped beating Rodney King confirmed that some American juries still tolerate violence against blacks. The King verdict triggered the worst race riot in American history, two days of violence that claimed fifty-eight lives and cost nearly one billion dollars in property damage.

In a reversal of historic roles, whites apparently have begun to fear black jurors. A controversial 1995 Yale Law Journal article argued that black jurors should vote to acquit black defendants in drug cases and other cases regardless of the evidence of their guilt (Butler). Although this article opposed the acquittal of black defendants who had committed crimes of violence, a few publicized acquittals and hung juries (including, justifiably or unjustifiably, the acquittal of O. J. Simpson) have prompted concern that black jurors may block the conviction of black defendants who have committed serious crimes against whites. Some members of America's majority race have begun to experience a glimmer of the fear of juries that the members of minority races have experienced throughout U.S. history.

A federal Court of Appeals declared in 1997, "We categorically reject the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent" (United States v. Thomas, 116 F.3d 606 (2d Cir.1997)). The court held that, even after jury deliberations had begun, a trial judge could remove a juror who had revealed "beyond doubt" an intention to violate the court's instructions. A jury instruction approved in California in 1998 requires jurors to "immediately advise" the court when "any juror . . . expresses an intention to disregard the law or to decide the case on . . . any . . . improper basis." In 2000, the California Supreme Court agreed to consider the appropriateness of this instruction, which three districts of the California Court of Appeal had upheld.

Dougherty and other Vietnam-era decisions declining to inform jurors of a "right" to nullify had indicated that jury nullification could be appropriate. They had sought only to specify the terms on which this nullification would occur. Thirty years later, however, a juror's advocacy of nullification on the terms Dougherty approved could lead to the juror's dismissal. Moreover, this juror's fellows could be instructed to assume the jury's long-abandoned role as witnesses, monitoring the jury room on behalf of the court to facilitate the rebellious juror's expulsion.

Conclusion

Jury trial, once a routine, reasonably summary procedure for resolving criminal cases, has become one of the world's most cumbersome adjudicative mechanisms and one of the least accessible. In practice, this form of trial has been largely replaced by an administrative regime of plea bargaining. Jury trial now confronts some of the same challenges as other democratic institutions. Just as candidates for public office appear to be getting better at manipulating voters, lawyers, aided by professional jury consultants, appear to be getting better at stacking juries and manipulating jurors. Simplifying jury-selection and trial procedures to reduce the importance of the lawyers' maneuvering might better enable juries to speak for the community and also might make fair and workable trials more accessible to defendants and the public.

Albert W. Alschuler

See also Appeal; Criminal Justice Process; Criminal Procedure: Constitutional Aspects; Grand Jury; Jury: Behavioral Aspects; Publicity in Criminal Cases; Sentencing: Procedural Protection; Trial, Criminal.

BIBLIOGRAPHY

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——. "Racial Quotas and the Jury." Duke Law Journal 44 (1995): 704–743.

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CASES

Alexander v. Louisiana, 405 U.S. 625 (1972).

Apodaca v. Oregon, 406 U.S. 404 (1972).

Apprendi v. New Jersey, 120 S. Ct. 2348 (2000).

Baldwin v. New York, 399 U.S. 66 (1970).

Ballew v. Georgia, 435 U.S. 223 (1978).

Batson v. Kentucky, 476 U.S. 79 (1986).

Blanton v. City of North Las Vegas, 489 U.S. 538 (1989).

Burch v. Louisiana, 441 U.S. 130 (1979).

Bushell's Case, 124 Eng. Rep. 1006 (Common Pleas 1671).

Carter v. Jury Commission of Greene County, 396 U.S. 320 (1970).

Castaneda v. Partida, 430 U.S. 482 (1977).

Duncan v. Louisiana, 391 U.S. 145 (1968).

Durden v. Missouri, 439 U.S. 357 (1979).

Eubanks v. Louisiana, 356 U.S. 584 (1958).

Georgia v. McCollum, 505 U.S. 42 (1992).

Glasser v. United States, 315 U.S. 60 (1942).

Ham v. South Carolina, 409 U.S. 524 (1973).

Hernandez v. New York, 500 U.S. 352 (1991).

Hill v. Texas, 316 U.S. 400 (1942).

Holland v. Illinois, 493 U.S. 474 (1990).

Hoyt v. Florida, 368 U.S. 57 (1961).

Irvin v. Dowd, 366 U.S. 717 (1961).

J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994).

Johnson v. Louisiana, 406 U.S. 356 (1972).

Lockhart v. McCree, 476 U.S. 162 (1986).

McKeiver v. Pennsylvania, 403 U.S. 528 (1971).

Morgan v. Illinois, 504 U.S. 719 (1992).

Murphy v. Florida, 421 U.S. 794 (1975).

Neal v. Delaware, 103 U.S. 370 (1881).

Norris v. Alabama, 294 U.S. 587 (1935).

Powers v. Ohio, 499 U.S. 400 (1991).

Purkett v. Elem, 514 U.S. 765 (1995).

Ristaino v. Ross, 424 U.S. 589 (1976).

Sparf and Hansen v. United States, 156 U.S. 51 (1895).

Spaziano v. Florida, 468 U.S. 447 (1984).

Strauder v. West Virginia, 100 U.S. 303 (1880).

Swain v. Alabama, 380 U.S. 202 (1965).

Tanner v. United States, 483 U.S. 107 (1987).

Taylor v. Louisiana, 419 U.S. 522 (1975).

Thiel v. Southern Pacific Co., 328 U.S. 217 (1946).

Turner v. Fouche, 396 U.S. 346 (1970).

Turner v. Murray, 476 U.S. 28 (1986).

United States v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972).

United States v. Ovalle, 136 F.3d 1092 (6th Cir. 1998).

United States v. Scott, 437 U.S. 82 (1978).

United States v. Thomas, 116 F.3d 606 (2d Cir. 1997).

Wainwright v. Witt, 469 U.S. 412 (1985).

Williams v. Florida, 399 U.S. 78 (1970).

Witherspoon v. Illinois, 391 U.S. 510 (1968).